Brashears v. Collison

Collins, J., delivered the opinion of the Court. This is an appeal from a' decree denying the reopening of a decree of foreclosure of property sold at tax sale as to some interested parties, and reopening and declaring null and void the decree of foreclosure áS to other parties.. The facts of the case are substantially as follows. Nicholas G. Collison died testate in Anne Arundel County oh or. about: May ,30, 1908, seized and possessed, among other things,'' of certain real..estate including a tract of ³⁴³ land containing approximately twenty acres in Anne Arundel County.

By his last will and testament, dated February 26, 1907, he devised this twenty acre tract of land to his son, David W. Collison, “for and during his, the said David W’s life and at his death to go to his children lawfully begotten share and share alike the Child or Children of any deceased child of said David’s to take the parents share.” After a number of other devises and bequests, he devised and bequeathed all the rest and residue of his estate “to be divided equally share and share alike among those of my grandchildren, only, who are heretofore named in this Will, said shares to be paid or deposited in the manner prescribed in the specific bequests and devises to them severally made.” This will was admitted to probate on June 9, 1908, and David W. Collison qualified as executor. He paid the taxes on the land through the year 1936 but failed to pay the taxes thereon for the years 1937 and 1938. The Treasurer of Anne Arundel County on October 10, 1938, sold the property for non-payment of taxes for $36.00, being the amount in arrears including interest and costs, to Minnie E. Collison, the wife of David W. Collison, and one of the appellees here. This sale was reported to the Circuit Court for Anne Arundel County and an order passed on November 2, 1939, ratifying and confirming the sale.

The Treasurer and County Commissioners of Anne Arundel County by deed dated December 19, 1939, conveyed the property to Minnie E. Collison in fee simple. Under the provisions of Chapter 761, of the Acts of 1943, known as the Tax Sales Act, Code, 1951, Article 81, Section 72-90 inclusive, which provided a proceeding wherein the equity of redemption of former owners of real estate sold at tax sale could be foreclosed, a tax sales certificate was issued on September 8, 1944, to Minnie E. Collison, showing the sale of the real estate purchased by her at the tax sale. The said Minnie E. Collison, on September 20, 1944, assigned the certificate of tax sale to Thomas E. Collison, a nephew of her husband, but not One of the grandchildren named in the ³⁴⁴ will of Nicholas G. Collison. Three days later, on September 23, 1944, Thomas E. Collison and Etta Mae Collison, his wife, among the appellees, and the cross-appellants in this case, filed a bill of complaint against his uncle, David W. Collison, the life tenant “and all persons having or claiming to have any interest in the property assessed to David W. Collison ‘20 acres and improvements, Mayo District No. 1,’ * * They asked that the right of redemption in said property be foreclosed.

This bill of complaint recited, among other things, the fact that the tax sale was made to Minnie E. Collison, who was the wife of David W. Collison, “who held a life interest therein under the will of his father, Nicholas G. Collison, * * * to go to his children lawfully begotten share and share alike * * *” and that the said David W. Collison was still living and had no children prior to the tax sale nor did he have any children at the time the bill of complaint was filed. The order of publication was published “warning all persons having or claiming to have an interest in the property to answer the bill of complaint or to redeem the property on or before the thirtieth day of November, 1944.” A decree pro confesso was taken against David W. Collison “and all persons having or claiming to have an interest in the property” on December 1, 1944. On December 28, 1944, a final decree of foreclosure was entered and the solicitor for Thomas E. Collison and wife was appointed to convey the real estate to the said Thomas E. Collison and wife in fee simple. This decree of foreclosure provided in part that “all rights of redemption of all Defendants whether named or not and of all persons having or claiming to have any interest in the property * * * be and they are hereby forever foreclosed.” The trustee, on January 8, 1945, executed a deed in fee simple to Thomas E. Collison and wife for the said twenty acres of land.

Since the execution of that deed Thomas E. Collison and wife have been in possession of the property, built a store thereon, have had plats prepared, and caused ³⁴⁵ it to be subdivided into lots. They are still in possession of some of these lots but have made conveyances of others. On March 2, 1946, they conveyed to Marshall Barnes and wife three lots which were mortgaged by Barnes and wife to the Annapolis Banking and Trust Company, one of the appellees here. On January 19, 1950, Barnes and wife conveyed the lots, subject to the aforesaid mortgage, to Paul D. Collison and wife, two of the appellees here.

On February 3, 1950, Thomas E. Collison and wife conveyed to Harry Orme and wife, appellees herein, nine lots subject to a purchase money mortgage to Thomas E. Collison and wife. On February 28, 1950, Thomas E. Collison and wife conveyed eight lots to J. H. Hedin, one of the appellees here, which are subject to a mortgage to the National Central Bank of Baltimore, one of the appellees. David W. Collison died on or about July 30, 1950, without leaving any child or children or descendants surviving. The only child ever born to David W. Collison died in infancy in 1896, twelve years before the death of Nicholson G. Collison.

On September 19, 1953, some of the residuary devisees in the will of Nicholas G. Collison filed a bill of complaint wherein they prayed that the tax sale herein and the proceedings for the foreclosure of the right of redemption be declared null and void, and the property sold for the purposes of partition. A demurrer was sustained to that bill. On March 16, 1954, four of the grandchildren, named as residuary devisees in the will of Nicholas G. Collison, filed a petition in the foreclosure case praying that the proceeding therein be reopened; that the tax sales be declared null and void; and for other and further relief. After answer filed, testimony was taken in open court by the chancellor.

He decreed on October 15, 1954, that the petition be dismissed as to so much of the land as was conveyed by Thomas E. Collison and Etta Mae Collison, his wife, to the Barnes, the Ormes and J. D. Hedin. He further decreed that the decree of foreclosure be reopened and declared null and void as to the petitioners, appellants ³⁴⁶ here, as to- all the lands other than the parts conveyed by Thomas E. Collison and wife to the said Barnes, Ormes and J. D. Hedin, and that Thomas E. Collison and wife pay the costs of the proceedings. ... From that decree the appellants, petitioners, B. Raymond Brashears and Rose Brashears, his wie.; David Clifton Dawson and Yetive C. Dawson, his wife; Elsie Winstead Hutchinson and Orion Neely. Hutchinson, her husband; Myrtle Collison Young and William O. Young, her husband, hereinafter designated as appellants,, and Thomas E. Collison and Etta Mae Collison, his. wife, hereinafter designated as cross-appellants, appeal to this Court.

Chapter 761, Section 90M, of the Acts of 1943, Code, 1951, Article 81, Section 111, provides: “(Decree of Court Conclusive.) No application shall be thereafter entertained to reopen any final decree rendered, . under the provisions of this sub-title except on the ground of lack of jurisdiction or fraud in the conduct, of the proceedings to foreclose. If the final decree of the court foreclosing all rights of redemption is set aside on the ground of lack of jurisdiction, the amount required to redeem shall be the amount required by the provisions of this sub-title, and in addition thereto, the reasonable value, at the date the decree is set aside, of all improvements made on the property by the purchaser and his successors in interest.” . It is provided by Chapter 761, Section 90C, of- the Acts of 1943, Code, 1951, Article 81, Section 10Í, as follows: “(Parties.) The plaintiff in any proceeding . to. foreclose the right of redemption shall be the holder , of the certificate of sale. The defendants in any such proceeding shall be the following: (a) The owner of the property as disclosed by a search of the Land Records of the County, of the records of the Register of Wills of..the County, and of the records of any court of law. or. equity of the County, (b) If the property be subject to a ground rent, the parties defendant shall be the owner of the fee simple title and the owner of the leasehold title as ³⁴⁷ disclosed by a search of the Land Records of the County, of the records of the Register of Wills of the County and the records of any court of law or equity of the County, (c) Any mortgagee of the property or his assignee of record, named as such in any unreleased mortgage record among the Land Records of the County, (d) The State of Maryland may be made a party defendant in any action to foreclose the right of redemption.

It shall not be necessary to name as defendant any other person having or claiming to have any right, title, interest, claim, lien or equity of redemption in and to the property sold by the Collector. Any or all of such persons may be included as defendants by the designation ‘all persons having or claiming to have any interest in property ............ (giving a description of the property in substantially the same form as the description which appears on the Collector’s tax bill).’ Any or all such persons may be designated throughout the proceeding by the above designation and the cause may proceed against them by publication under order of court as hereinafter provided.” The first question before us is whether the appellants, the grandchildren named in the will of Nicholas G. Collison as residuary legatees, were necessary parties defendant in the proceedings to foreclose the right of redemption. We are of opinion, as found by the chancellor, that the petitioners here were necessary defendants in the foreclosure proceedings and, therefore, as to them the court had no jurisdiction to forclose the right of redemption, they being owners of a remainder interest in the property sold at tax sale.

The decree of foreclosure as to them was null and void. It was said by this Court in Ringgold v. Carvel, 196 Md. 262, 273 , 76 A. 2d 327 : “The will under consideration devises a contingent remainder to the grandson’s children and grandchildren, living at the time of his death, and by the residuary clause gives the reversionary interest to his son for life with remainder to the son’s children and grandchildren ³⁴⁸ living at the time of his death. We hold that where there is a devise to one person for life with a contingent remainder to his surviving children in fee simple, and a residuary devise (including the reversion after the life estate) to another, and the life tenant had no children, the residuary devisee takes the fee simple as a vested remainder. In the language of Professor Tiffany, such devise presents ‘a case of the limitation of a vested remainder subsequent to the limitation of a contingent remainder in fee simple.’ 2 Tiffany, Real Property, 3d Ed., sec. 333.” See also Barnum v. Barnum, 42 Md. 251, 312, 313 ; Miller, Construction of Wills, Sections 216, 217, 218.

The statute above quoted specifically provides that owners of property as disclosed by a search of the records of the Register of Wills of the county shall be made parties defendant in any proceeding to foreclose the right of redemption. A search of such records of the Register of Wills would show that Raymond Bra-shears, David C. Dawson, Elsie Petty, now Elsie Win-stead Hutchinson, and Myrtle Collison, now Myrtle Collison Young, were named among the grandchildren of Nicholas G. Collison in his will and as residuary legatees. They were not named as defendants, no sub-poenas were issued against them or any of them, and no order of publication was published against them or any of them by name. As to them the court was, therefore, without jurisdiction to pass the decree of foreclosure here attacked.

It is said in 169 A. L. R., page 717: “It has generally been held that a life tenant and the remainder-men must be made parties to